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Inside India's Great Court Crisis

When four senior SC judges went public against CJI Dipak Misra on January 12, one of the triggers appeared to be Judge BH Loya case. But there are multiple crises. DNA goes inside Indian judiciary's unprecedented turmoil and examines its fallout

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When the four senior Supreme Court (SC) judges went public on January 12 to bare their anguish over Chief Justice of India (CJI) Dipak Misra's alleged breach of institutional integrity, it naturally shook an entire nation. For, the press conference they held "to save the democracy" was an unprecedented airing of multiple crises at one of India's most respected institutions. The four judges — the most senior of the court's 25 after the CJI — alleged that Misra was ignoring rules and assigning cases according to his own preferences.

In the week since, the corridors of power — both judicial and political — have remained shaken. Though Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph returned to work on January 15, India's higher judiciary is left split wide open. The Congress came out in support of the four judges the same evening and said that the concerns raised were "extremely important" and they needed to be "looked into carefully."

There were always rifts at the court. But the trigger for the revolt appeared to be the allocation of a case pertaining to the investigation into the death of special Central Bureau of Investigation (CBI) Judge BH Loya to a junior judge. When reporters asked whether the press conference was related to the case of Loya, who reportedly died of heart attack in 2014, one of the four judges said "yes". The Supreme Court is now hearing a petition calling for an investigation into allegations that he was murdered.

The four judges said that they were "left with no choice but to communicate with the nation," since all efforts at trying to convince CJI Misra on various issues had failed. "…the four of us are convinced unless the institution is preserved, democracy will not survive," they said.

Though Justices Lokur and Joseph retire later this year, with figuratively nothing to lose, Justice Gogoi's case couldn't be more different. He is slated to succeed CJI Misra on his retirement in October this year. Why would the future Chief justice of India, who rarely entertains controversy, come out and rock the boat?

There is a hidden message that needs to be picked up here. One is tempted to assume that the attack was not directed towards the CJI alone. There are indications that the four judges were hitting out at those who attempt to control the judiciary and curtail its independence. They ripped the opaque curtain surrounding the judiciary in shroud and mystery.

But the four judges are not alone. DNA has reliably learnt that barring a small minority, many other judges are equally anguished by the state of affairs inside the apex court. Reports of mediation have filtered out, but ultimately, the ball is squarely in the court of the Chief Justice, who has reached out to the four judges, but remained silent on the entire crisis.

THE DUEL

The rivalry between CJI Misra and Justice Chelameswar — the two senior-most judges in the apex court — is no secret. This came to a head in December 2017, when Justice Chelameswar heard a petition by advocate Kamini Jaiswal and NGO Campaign for Judicial Accountability and Reforms (CJAR) for a court-monitored probe into alleged corruption by a retired high court judge, the case known as the medical college bribery scam. CJI Misra overturned Justice Chelameswar's order referring the case to the court's top judges. The CJI justified the decision by saying he was "master of the roster".

DISSENTS IN JUDICIARY

As a former colony, India is no stranger to protests before and after Independence. Historians comment that the current crisis is akin to the one the country faced during Emergency. In 1976, a year after Emergency was imposed, Justice Hans Raj Khanna was the lone dissenter in the five-member bench that went against the then Prime Minister Indira Gandhi.

His critique cost him his promotion as CJI. In January 1977, he was superseded and Justice Beg, who was next in seniority, was appointed the CJI. In August 2017, when a nine-judge bench unanimously upheld privacy as a fundamental right, Justice DY Chandrachud, who wrote the judgment, upheld Justice Khanna's dissent and hailed his sacrifice almost 40 years later.

Justice RF Nariman's observations on the Three Great Dissents were equally telling in the privacy judgment. He began his discussion by quoting what Charles Evans Hughes said before he became the chief justice of the US (right). Justice Nariman was speaking about the dissents by Justice Fazl Ali in AK Gopalan vs State of Madras, 1950, Justice Subba Rao in Kharak Singh vs State of Uttar Pradesh, 1962, and Justice HR Khanna in ADM Jabalpur vs Shivakant Shukla, 1976.

In 2004, 25 of the 27 judges of the Punjab and Haryana High Court went on leave en masse following differences with Chief Justice BK Roy, who had sought an explanation from two of his colleagues who had accepted membership of the controversial Forest Hill Country Club and Resort against which a case was pending in the High Court.

However, the judges reported back to work the next day after the apex court issued notice and intervened.

The three judges, Justice GS Singhvi, (author of the apex court's 2G scam case judgment in 2012), Justice VK Bali and Justice HS Bedi, who led the protest, were summoned and "severely admonished" by then CJI VN Khare.

HISTORY OF DISSENTERS

A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed…
Charles Evans Hughes, 11th Chief Justice of the US (1930-1941)

Rift in the Collegium

Former CJI JS Khehar finalised the draft of the new MoP, the document that guides appointments to higher judiciary, in March 2017 and submitted it to the Centre. Apart from then CJI Khehar, other members of the Collegium included current CJI Dipak Misra and Justices Chelameswar, Gogoi and Lokur. All, except Justice Khehar, who is now retired, are members of the larger SC collegium in which the CJI and four judges recommend appointments and transfers of judges across the country.

However, almost a year later, though the new MoP is yet to be notified, it seems the Collegium stays divided. The first glimpse broke through in December 2017 when two letters written by Justice Lokur and Joseph emerged.

The Collegium led by CJI Dipak Misra on October 6, 2017 passed a resolution wherein their decisions would be uploaded online "to ensure transparency".

In their letters, the Justices had expressed their reservation before the resolution was passed on grounds that the rights of persons mentioned in the resolutions outweighed against the goal of transparency.

In an October 7 letter, Justice Joseph wrote: "…you have in breach of the trust reposed in you, in violation of the mandate of the resolutions and in total defiance of the request of your sister and brother judges, chosen to upload the text of the resolutions which contained information which might violate human rights of some persons, if not other rights, who are still to continue as judicial officers…"

"If three out of five of the Collegium request you to have further discussions on the issue, are you not bound by such request?…All of us are seriously interested in transparency. But should we also not respect the rights of others affected by our attempt to be transparent?" Justice Lokur's letter read.

If one goes by what Justice Lokur has suggested in his letter, the Collegium system does not seem to be following the advise of the majority and unilateral decisions are being taken by a select few.

THE TUG OF WAR

The administration of justice is something the public does not concern itself with. However, the administrative function of the CJI is an important factor as it controls the administration of justice.

In India, the Supreme Court has divided itself in panels with a minimum of two judges forming division benches. 
To optimise time and resources, the CJI exercises tremendous executive power in constituting these benches and allocating cases accordingly. He is thus known as the master of the roster, a fact that CJI Misra cemented in 2017 by asserting his power through a hastily assembled five-judge constitution bench that rose from the medical college bribery scam.

However, preceding the constitution bench, the circus that played out in the apex court during the medical college bribery scam had already cemented the fact that all was not right in the judges' lounge!

Executive's attempts for control over judiciary

The executive has often tried to control the judiciary through legislation. In a 2015 interview, former Union Law Minister Hans Raj Bhardwaj admitted that the political class has always been making attempts to control the judiciary. "All my life, I have seen chief ministers tending to interfere in the functioning of the judiciary and my own colleagues (at the Centre). I had a very difficult time because I had to face Parliament and I also had to keep the people of India convinced that judiciary in our country was independent," he had said. "If you appoint a judge simply because a chief minister says appoint him, what will be the fate of the judiciary? All counsel also agree with the need to keep judiciary independent."

Since the 1950s, the balance between the executive and the judiciary was determined by the clout the ruling political party could wield. However, by the 1990s, this clout was somewhat diminished when the judiciary took away the executive's power to appoint judges.

When it was in power, even the Congress supported a legislation that would bring in a National Judicial Appointments Commission (NJAC), allowing the executive to appoint judges. For all its criticism now, the Congress was equally guilty of manipulation and partook in all attempts to control the judiciary. "I have said it was a misconceived legislation even if the Congress supported it. All those who are trying to interfere in judicial work or the appointment process, this will go against the interest of the country," Bhardwaj had said.

However, when the SC struck down the NJAC in 2014, the landmark judgment protected the "independence" of the judiciary. By stonewalling itself, the judiciary sought to protect its interest – Judiciary of the people, by the judges, for the people. However, this is not to say that this method was foolproof. In fact, the Memorandum of Procedure (MoP) to appoint judges has been the main thorn of contention for the dissent among the warring judges.

More recently, on September 25 last year, Karnataka HC judge Justice Jayant Patel resigned over his transfer to Allahabad HC instead of being elevated as the Chief Justice.

As acting Chief Justice of Gujarat HC, Justice Patel had famously ordered the CBI to investigate the 2004 alleged fake encounter of Ishrat Jahan in Gujarat.

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